Free speech and abortion rights collide: In Plain English

Posted Tue, January 14th, 2014 5:35 pm by Amy Howe

Tomorrow, the Court will hear the case of Eleanor McCullen, a seventy-seven-year-old Massachusetts grandmother who has spent over fifty thousand dollars of her own money to help pregnant women who decide not to get an abortion. All McCullen wants, she tells the Court, is to stand on a public sidewalk to provide information and offer help to women entering an abortion clinic, but a state law prohibits her from doing so. Based on the Court’s past track record on First Amendment cases, she may well soon get that chance. Let’s talk about McCullen v. Coakley in Plain English.

Federal laws provide some protection for women seeking access to abortion clinics. But some states have gone farther and enacted their own laws intended to provide women with additional protection. In 2000, in a case called Hill v. Colorado, the Court upheld a Colorado law which drew a line one hundred feet around health care facilities and made it illegal for anti-abortion protesters to go within eight feet of anyone within that buffer zone to counsel, educate, or protest.

The law, the Court reasoned, struck the right balance between protecting the clinic’s patients from unwanted attention and the need to allow protesters to protest.

At the oral argument tomorrow, the Court will be considering a challenge by McCullen and other anti-abortion protesters to a Massachusetts law that makes it a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of an abortion clinic. The law carves out an exception, however, for employees of the clinic. McCullen argues that, by creating such an exception, the Massachusetts law — unlike the law at issue in Hill — discriminates based on the views of the person who is speaking: employees of the clinic can go into the buffer zone and say anything related to their jobs, but protesters cannot. In fact, McCullen emphasizes, the law even applies to conduct that is “entirely peaceful,” like prayer or holding an anti-abortion sign. Another problem, McCullen points out, is that she and her fellow protesters don’t have any real alternatives to get their message across at some clinics. Shouting at women within the buffer zone from thirty-five feet away doesn’t work, but on the other hand it is difficult for her to talk to women outside the buffer zone because it’s hard to tell who is going to the clinic and who is just walking down the sidewalk. Finally, she suggests, if the Court were to uphold the Massachusetts law based on its ruling in Hill, the Court should simply overrule that decision.

Massachusetts paints a very different picture in its brief, which it begins by listing examples of conduct by (mostly) anti-abortion protesters that led the Massachusetts legislature to first pass a law modeled on the one upheld by the Court in Hill. But, the state explains, that law ultimately proved both ineffective at maintaining safe access to the clinics and difficult for police to enforce – prompting the legislature to adopt the law at issue in this case. The new law, the state continues, is intended to keep clinic entrances “open and clear of all but essential foot traffic, in light of more than two decades of compromised facility access and public safety.” With this goal in mind, the law doesn’t “directly regulate speech” and instead only targets conduct. Moreover, the state argues, the legislature didn’t adopt the law because it “disagreed with any underlying message”; it notes that not all of the protesters whose actions it is trying to regulate opposed abortion.

Addressing some of McCullen’s other arguments, the state contends that it doesn’t matter that the law only applies to abortion clinics, because those were the only places where the problems occurred. Nor does it matter that the law doesn’t apply to clinic employees: the law needed to have some kind of exemption for the people who were going in and out of the clinics, because otherwise they too would violate the law whenever they set foot in the buffer zone. And the law still “limits” the conduct of clinic employees, allowing them to “get on with their jobs” but nothing more. Finally, the state emphasizes that the thirty-five-foot buffer zone was a solution that it reached after extensive trial and error, and that it was the only solution that would provide safe access to clinics while still allowing protesters to express their views.

How is this going to play out tomorrow? The Court decided Hill by a vote of six to three, but that was over thirteen years ago, and it’s now a very different Court. The only Justices left on the Court from the Hill majority are Justices Ginsburg and Breyer; two of the others – Sandra Day O’Connor and the late Chief Justice William Rehnquist – have been replaced by the more conservative Justice Samuel A. Alito and Chief Justice John Roberts, respectively. By contrast, all three of the dissenting Justices from Hill (Thomas, Scalia, and Kennedy) remain on the Court, and we have no reason to think that their views have changed. So even if you assume that Justices Sotomayor and Kagan will vote to uphold the law, the state would still need a fifth Justice to prevail, and that vote could be hard to find. Throw in that the Roberts Court has yet to meet any controversial speech that it isn’t willing to allow – whether you are talking about movies showing animal cruelty, selling violent video games to children, protests at the funeral of a fallen soldier, or lying about receiving the Medal of Honor – and the Massachusetts law could be in jeopardy. Stay tuned . . . .we will be back to report on the oral argument in Plain English as well.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.